What the Supreme Court’s Travel-Ban Ruling Means in Practice

In effect, the Supreme Court’s ruling on President Trump’s travel ban created a new category of people in order to find a situation where the ban could still apply.

Photograph by Spencer Platt / Getty

On Monday morning, the Supreme Court agreed to hear arguments on the
constitutionality of the Trump Administration’s executive order barring
travellers from several majority-Muslim countries from entering the U.S.
It also allowed the travel ban—which the Administration first issued in
January, and which has been consistently blocked by lower courts—to be
partially implemented, as long as it was not used against any “foreign
nationals who have a credible claim of a bona fide relationship with a
person or entity in the United States.”

The White House received the ruling as a victory, but the number of
people who will actually be affected is limited. A “person” can be a
family member, like one’s mother-in-law; an “entity” could cover anyone
travelling to the U.S. for work or school, or even to give a lecture.
Those who can claim to have any such relationships are exempt from the
order.

So whom, exactly, will the travel ban now bar from the country? I asked
Becca Heller, the director of the International Refugee Assistance
Project, which brought one of the cases that is now before the Court.
“It would have to be someone seeking a tourist visa from one of the six
countries, who knows no one in the U.S., and who has no reason to be in
the U.S. except for vacation,” she told me. Even people from any of the
six countries travelling to the U.S. for medical procedures would have a
strong case for being able to evade the ban’s restrictions, she said.
The only people the Justices identified as being subject to the travel
ban were foreign nationals with no ties to the United States. “There are
no such people represented in the cases before the Court,” David Cole,
the legal director of the A.C.L.U., which argued against the ban before
an appeals court, told me. In effect, the Court created a separate
category of people—beyond the scope of all the plaintiffs in the
lower-court cases—in order to find a situation where the Trump travel
ban could still apply.

At the end of Monday’s decision, the Justices considered the status of
refugees. Trump’s March executive order suspended all decisions on
asylum claims and blocked the arrival of refugees for a hundred and
twenty days. (It also sought to impose a cap on the number of refugees
who could be admitted into the U.S. in the coming fiscal year.) For refugees, the Justices applied the same filter they’d used
earlier in their decision: any refugee with a “bona fide” relationship
with someone in the U.S. couldn’t be barred from entering the country
due to the travel ban. Those without such ties, by contrast, would be
blocked—but, at present, for bureaucratic reasons, such people can’t be
admitted to the U.S. as refugees anyway. According to Heller, any
asylum-seeker who has been assigned to an American resettlement
agency—an “entity” in the U.S.—is qualified to enter the country under
the terms of the Supreme Court’s ruling.

Still, none of this kept the President from celebrating on Monday. Trump
called the decision “a clear victory for our national security,” and an
official White House statement twice mentioned the fact that the Court’s
decision had been “unanimous.” But opponents of the ban also found
reason to hold out hope for the decision as well. “We are disappointed that the Court is allowing any aspect of the Muslim ban to take effect, but what’s important to recognize is that the Court adopted a kind of middle-ground position that does not
indicate its views on this one way or the other,” Cole said. “They did
not grant what the government requested, which was a lifting of the
entire injunction. They didn’t grant what we requested, which was a
denial of any stay. They took a course that no one suggested.” The
decision, Cole told me, amounted to a “statesman-like attempt to avoid
telegraphing how the Court would rule on the merits.”

The Court will hear arguments on the travel ban in October, but, as many
have pointed out, the Administration could change its position on the
ban by then. With the ban partially in effect, the Department of
Homeland Security has seventy days to conduct a review of whether
foreign governments provide adequate information about their citizens
applying for U.S. visas. After that, the Administration will, in theory,
reassess its policies.

In the meantime, civil-rights advocates will carefully monitor how
Customs and Border Protection agents enforce the terms of the Supreme
Court ruling at the nation’s airports. When the travel ban was first
issued, in January, it led to chaos—agents interpreted the language in
broad and idiosyncratic ways, detaining travellers with valid travel
documents and denying them access to lawyers. So far, the Department of
Homeland Security, which oversees C.B.P., has said little about how it
plans to implement the new terms of the order. On Monday, it issued a
statement simply endorsing the President’s executive order. “The Supreme
Court today has allowed the Department of Homeland Security to largely
implement the President’s Executive Order and take rational and
necessary steps to protect our nation from persons looking to enter and
potentially do harm,” the statement read.

“Practically, in terms of who can enter the country, if the government
follows the express language of the decision—which is an open
question—the impact should be limited. But the stigma is significant,”
Heller told me. The arguments made before the lower courts centered on
how the travel ban discriminated against Muslims by assuming that they were a
threat to national security. “The Supreme Court ruling today keeps that
stigma,” she said. “The message of the order is that we think Muslims
are dangerous, and we’re not going to let them into the U.S.”